CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mai 2017

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POLAND   (Application no. 48286/11)               JUDGMENT (Just satisfaction)     STRASBOURG   30 May 2017     FINAL   30/08/2017     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.     In the case of Żuk v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Krzysztof Wojtyczek,   Faris Vehabović,   Egidijus Kūris,   Carlo Ranzoni,   Marko Bošnjak,   Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 9 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 48286/11) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Danuta Bronisława Żuk (“the applicant”), on 22 July 2011. 2.     In a judgment delivered on 6 October 2015 (“the principal judgment”), the Court held that there had been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the fact that a judgment of a civil court in the applicant’s favour had not been enforced. 3.     In her initial application the applicant asked the Court, under Article   41 of the Convention, for just satisfaction in respect of pecuniary damage she had suffered in the amount of 50,000 zlotys (PLN). 4.     Since the question of the application of Article 41 of the Convention concerning the pecuniary damage was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (see the principal judgment, § 65, and point 5 of the operative provisions). 5.     The applicant and the Government each filed observations. THE LAW 6.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 1.     The parties’ submissions 7.     In the just satisfaction claims that she submitted to the Court after the principal judgment the applicant stated that the pecuniary damage she had suffered as a result of the violation found could be redressed if the respondent State transferred to the applicant and her husband ownership of the two plots of land concerned, Nos. 184/3 and 187/3, as provided for by the judgment of the Szczecin District Court given on 15 April 2004 in respect of the applicant and her husband. She also claimed payment of lost profits in the amount of PLN 60,000. 8.     Alternatively, the applicant submitted that in the event of the impossibility of effecting the transfer of ownership she should be paid damages in an amount corresponding to the market value of the plots. She submitted a report by a certified surveyor dated 1 December 2015. 9.     The report found that the area covering the plots of land concerned was situated in the suburbs of the municipality of Szczecin, within its administrative borders. The majority of land in that area had in the past been re-categorised from arable land to land suitable for various construction purposes. Many plots of land previously categorised as arable had been divided into small plots suitable for construction. It was further noted that no land development plan had been adopted in respect of the area concerned. The use to which land situated in that area could be put had been determined in an outline study of land development adopted by way of a resolution of the Szczecin City Municipal Council of 26 March 2012 ( studium uwarunkowań i kierunków zagospodarowania przestrzennego miasta Szczecin ). Under this resolution land located in this area could be used primarily for housing purposes (including the construction of individual houses), for services, for greenery and forests, and for business services (including retail sale in medium-size premises). The price per square metre in respect of the two plots concerned had been determined with reference to a number of sales transactions in respect of similar properties located in that area. This report estimated the aggregate market value of plots Nos. 184/3 and 187/3 at that time at PLN 1,240,000. 10.     The applicant further argued that the area concerned was situated within the administrative confines of the municipality of Szczecin, while the estimate of land prices relied on by the Government referred to the entire West Pomeranian Region (see paragraph 13 below). 11.     As regards the applicant’s wish for the ownership of the land concerned to be transferred to her, the Government averred that this was not possible. They further submitted that on 15 October 2015 the State Treasury had signed a lease contract with a third party in respect of plot no. 184/3. 12.     The Government were further of the view that the pecuniary and non-pecuniary damage sustained by the applicant amounted to PLN 50,000. They referred in this respect to a letter from the applicant dated 10 April 2014 in which she submitted a claim for PLN 50,000, submitted to the Court during the proceedings leading to the adoption of the principal judgment. 13.     In so far as the applicant claimed payment of damages in the amount of PLN 1,240,000, the Government found this sum grossly exorbitant. Under the outline study of land development currently in force in respect of the area concerned (see paragraph 9 above), land in this area was principally categorised for agricultural use, while the construction of one-family houses relied on by the applicant as a basis for the estimate of the land’s market value was only a supplementary function. Hence, the estimate made by the applicant’s expert was not reliable. The value of one hectare of arable land in the West Pomeranian Region ( województwo zachodniopomorskie ) amounted to PLN 27,432. Hence, the current value of the plots concerned would amount to approximately PLN 75,545 – the amount arrived at by multiplying the price of one hectare by the total surface of the two plots (2.7539 hectares). The Government were of the view that the amount of PLN 50,000 constituted sufficient just satisfaction and that the report that the applicant had submitted to the Court should be rejected. 14.     Lastly, the Government argued that one domestic remedy had been available to the applicant and her husband: have lodged a compensation claim against the State Treasury, represented by the mayor of Szczecin, as the current owner of the plots. This would have enabled them to obtain compensation for the damage resulting from the fact that the judgment given in 2004 remained unenforced. 2.     The Court’s assessment 15.     With regard to the Government’s argument that it would have been possible in yet another set of civil proceedings for the applicant to seek compensation for the damage arising out of the non-enforcement of the 2004 judgment, the Court reiterates that as a rule, the requirement that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 (see, for instance, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, § 17, Series A no. 285 C; Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006-IX; and a/s Diena and Ozoliņš v. Latvia , no. 16657/03, § 93, 12 July 2007). Indeed, requiring applicants who have exhausted the domestic remedies without success before bringing a complaint before it to exhaust further domestic remedies in order to be able to obtain just satisfaction from the Court would protract the procedure instituted by the Convention in a manner scarcely in keeping with the idea of the effective protection of human rights (see, for instance, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 40, Series A no. 330-B, and Erbey v.   Turkey (just satisfaction), no. 29188/02, § 25, 26 October 2010). This reasoning applies with all the more force in the present case, given that the applicant has already unsuccessfully instituted one set of civil proceedings in order to obtain redress for the fact that the 2004 judgment remained unenforced (see paragraphs 25-33 of the principal judgment). Accordingly, the Court is not prevented from making an award on that account. 16.     The Court further notes that by a judgment of 14 May 2007 the Szczecin District Court held that the statutory conjugal property of the applicant and her husband created ex lege by their marriage had been replaced by a separate marital property regime on 1 January 2004 (see paragraph 24 of the principal judgment). Under Polish law spouses’ shares in statutory conjugal property are equal by default. No arguments have been advanced to show that in the present case the court established that the spouses’ shares were, regard being had to their contributions to the conjugal property, unequal. This consideration is directly relevant for the Court for the purposes of the determination of the just satisfaction to be paid to the applicant, given that the applicant’s husband is not an applicant in the present case. 17.     The Court observes that the applicant, by a decision of 20 November 1989, was determined a candidate for purchase of two plots of land, nos.   184/3 and 187/3, designated for farming purposes (see paragraph 7 of the principal judgment). Subsequently, by the judgment of 15 April 2004 the Szczecin District Court obliged the municipality to sell the land concerned to the applicant and her husband. The price of the plots to be paid by the applicant was determined at PLN 11,015 (see paras 19-20 of the principal judgment). The applicant paid this price on 17 March 2005 (see paragraph   22 of the principal judgment). 18.     The Court notes that the judgment of 15 April 2004 remains unforced. It further notes that no submission has been made by the Government to the effect that it intended to abide by the judgment of 15   April 2004. For the Court it is also significant that the parties have failed to reach a friendly settlement (see paragraph 4 above) by means of which the Government could have transferred ownership of the land to the applicant or offered the applicant other plots of an equivalent nature. Hence, it considers that in the circumstances of the present case and in the absence of the judgment being complied with, it is necessary to undertake the measures which would place the applicant as far as possible in a situation equivalent to the one in which she would have found herself if there had not been a breach of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention. 19.     It his further noted that according to an expert report submitted by the applicant, the current market value of the land amounts to PLN   1,240,000 (see paragraph 9 above). The Government challenged the findings of the expert in so far as it related to the categorisation of the that land as land suitable for the construction purposes. They argued that the report did not take into account the land planning principles adopted by the municipality for the smaller sub-area where the plots concerned were situated. Under the relevant land-planning resolution adopted by the municipality the main function of the area was agricultural, building single-family housing being merely a subsidiary use to which the land could be used. The Court notes that this argument has not been disputed by the applicant. 20.     The Court is well aware that the categorisation of the land as either arable or suitable for construction purposes is crucial for the determination of its market price. It notes in this respect that while the Government’s argument hinges on the main function to which the land in the relevant area could be put, it has not been argued, let alone shown, that the two plots of land concerned in the present case could not, under the applicable land planning instrument referred to above (see paragraph 9), be used for construction of individual family homes, as argued by the applicant. The Court notes that the local outline study of land development does not exclude the building of individual houses within the sub-area concerned and generally provides that the land can be used also for housing purposes. 21.     It is further noted that the Government neither challenged the qualifications of the expert nor submitted their own expert report to determine the value of the plots of land concerned. The Court further notes the applicant’s argument that the land concerned is situated within the administrative borders of the municipality of Szczecin (see paragraph 9 above). The Court finds it reasonable to assume that this proximity to a major town could have an impact on the prices of the land concerned. 22.     On the other hand, the Court observes that the price determined by the expert report is far higher than the price determined by the domestic courts in 2004 and actually paid by the applicant in 2005. It also substantially exceeds the initial claim for just satisfaction submitted by the applicant to the Court (see paragraph 12 above). Furthermore, it is noted that the purpose of the program of selling plots on the basis of which the original administrative decision conferring the right to buy land on the applicant was given was to assign land for farming purposes. The Court notes in this respect that in 1989 when this decision was given the two plots concerned were designated for agricultural purposes. Under the applicable Polish legislation, if the value of land increases due to changes effected in the relevant land development plans, the owner is obliged to pay a special tax. 23.     Moreover, the Court accepts that certain aspects of the assessment of the value of the property remain unclear. Making an overall assessment of the relevant considerations on the basis of the material available to it and having regard to the judgment which instituted separate marital property regimes in respect of the applicant’s and her husband’s property (see paragraph 17 above) and also to the fact that the period during which the applicant sought to have the judgment of the Szczecin District Court (see paragraphs 19–21 of the principal judgment) enforced had started in 2004, the Court finds that the applicant should be awarded as compensation for the pecuniary damage sustained, a lump sum of 40,000 euros (EUR), plus any tax that may be chargeable on that amount (see, for a similar approach, S.L.   and J.L. v. Croatia (just satisfaction), no. 13712/11, §   21, 6 October 2016). 24.     On the other hand, the Court notes that the applicant did not claim compensation in respect of non-pecuniary damage and it therefore makes no award in that respect (see Rasidescu v. Romania (just satisfaction), no. 39761/03, § 15, 7 April 2015). B.     Costs and expenses 25.     The applicant submitted that the respondent State should pay to her the legal costs incurred in the proceedings before the Polish courts in the aggregate amount of PLN 20,100. 26.     The Government submitted that in the principal judgment the Court had awarded the applicant EUR 200 and that that amount had already been paid to the applicant. 27.     The Court notes that in the course of the proceedings leading to the principal judgment the applicant requested the Court to award to her costs and expenses incurred in connection with the proceedings before the Court. She requested the Court to determine the amount having regard to the Court’s practice in cases against Poland. Her request was allowed and the amount of EUR 200 awarded to her. 28.     At no point of time did the applicant submit to the Court any documents proving the expenses incurred in connection with the proceedings before the national courts. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that they have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Ziembiński v. Poland (no. 2) , no. 1799/07, § 58, 5 July 2016). Not having been provided with any documents to justify the amounts claimed by the applicant the Court is unable to establish an amount for those expenses and fees. The Court therefore makes no award under this head. C.     Default interest 29.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   2.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Andrea Tamietti   Ganna Yudkivska Deputy Registrar   President